Anthony Kennedy on Crime

Supreme Court Justice (nominated by Pres. Reagan 1988)

Death penalty for rape is cruel & unusual punishment

The Supreme Court case of "Kennedy v. Louisiana" involved a sentence of death for a man convicted of rape. The Supreme Court, in an opinion written by Justice Anthony Kennedy, ruled the law unconstitutional, citing the prohibition in the Eighth
Amendment against cruel and unusual punishment. Now, considering that the Supreme Court in 1972 halted the death penalty despite the fact that the Constitution actually includes in its very text a provision for "capital crimes", only to allow it again a
few years later, one might begin to question whether the Constitution had anything at all to do with their reasoning. In his infinite wisdom, Justice Kennedy wrote, "In most cases justice is not better served by terminating the life of the perpetrator
rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense." Really? What part of that is not making policy?

Government is not responsible for abuses in private prisons

In Malesko v. Correctional Services Corp., 2000, an inmate who served time in a halfway house operated on behalf of the Bureau of Prisons by a private corporation sought to sue the corporation for injuries that he suffered in the halfway house. Sotomayor
held that the inmate could bring an action against a private corporation acting under color of federal law. Such a result, she explained, "provides redress for constitutional rights." The Supreme Court granted certiorari and reversed by a 5-to-4 vote, in
2001. In an opinion by then-Chief Justice Rehnquist, the Court held that [the courts should be] "concerned solely with deterring the unconstitutional acts of individual officers." Justice Stevens--joined by Justices Souter, Ginsburg, and Breyer--
dissented. In their view, because the violation at issue "was committed by a federal agent--a private corporation employed by the Bureau of Prisons to perform functions that would otherwise be performed by individual employees of the Federal Government."

Source: ScotusBlog.com, "Civil Litigation"
, Jul 25, 2009

International opinion opposes juvenile death penalty

Kennedy had incurred the wrath of right-thinking pro-life conservatives by casting the tie-breaking vote in "Roper v. Simmons," outlawing the death penalty for people who committed their capital crimes while still minors.
The right was most incensed by Kennedy's acknowledgement of "the overwhelming weight of international opinion against the juvenile death penalty."
Somehow, foreigners had infiltrated our highest court. World government was clearly just around the corner. As Tom DeLay would thunder on Fox News Radio: "We've got Justice Kennedy writing decisions based upon international law, not the
Constitution of the US. That's just outrageous."

But that wasn't Kennedy's only unforgivable sin, according to DeLay: "And not only that, he said in session that he does his own research on the Internet. That is just incredibly outrageous."

Live witness not required for all scientific testing.

Justice Kennedy wrote the dissent on BULLCOMING v. NEW MEXICO on Jun 23, 2011:

Bullcoming was arrested for drunk driving. A blood sample seized by police was given to a state laboratory for testing of its blood alcohol content (BAC). A state chemist performed the test and completed a portion of a document intended for use in a criminal trial. At trial this chemist was not present--was, in fact, on an unexplained unpaid leave--but another chemist appeared to describe the lab's process and read the results from the form over defense counsel's objection.

The Sixth Amendment Confrontation Clause confers on the accused in criminal cases "the right … to be confronted with the witnesses against him." The testing chemist was not a mere scrivener of results, but performed the test and recorded significant facts about its integrity and accuracy. The substituted chemist had no personal knowledge of the blood test at all, or information as to whether the testing chemist was on
unpaid leave owing to a failure in his duties. The Sixth Amendment provides a particular guarantee. Courts are not invited to look behind the text for the purpose, and from there to craft something "fair." Further, the report of BAC analysis was "testimonial." It was prepared as part of a duty imposed by law on state chemists to assist with police investigations, and included formalities intended for its introduction as evidence in a criminal case.

CONCURRED: Sotomayor concurs in part

This holding does not control non-testimonial documents, testimony by a person with some personal knowledge of a test, an expert witness, or introduction of machine-generated results.

DISSENT: Kennedy dissents; joined by Roberts, Breyer, and Alito

The Confrontation Clause is intended to ensure a fair trial with reliable evidence, not that every person who conducts routine evidence testing appear in court for the prosecution.

International Court not grounds for stay of execution.

Leal, a Mexican citizen residing in the US since age 2, was convicted of murder in Texas and sentenced to death. When arrested, he was newver advised of his Vienna Convention right to contact his consulate. In a case filed by Mexico against the US in the International Court of Justice (ICJ), that court found the US had violated the rights of Leal and other Mexicans by failing to inform them of the Vienna Convention rights.

Leal requests a stay of execution to allow Congress time to enact a bill filed in the Senate and supported by the President that would implement the ICJ's view of the Vienna Convention as US law. The Supreme Court would then have jurisdiction to determine Leal's case. Yet this Court has never issued a stay in light of proposed legislation. Further, Congress has not acted though 7 years have passed since the ICJ decision, and 3 since a similar defendant requested a stay
of his execution in hopes Congress would act. If this were truly a legislative priority, Congress would have acted. Whatever might be the international consequences, Congress did not see them as sufficiently grave as to prompt it to change the law. Last, the US refused to argue that Leal was prejudiced by the failure to provide Vienna Convention rights. This argument would be the beginning point for the Court to consider a stay.

DISSENT: BREYER dissents; joined by GINSBURG, SOTOMAYOR & KAGAN

The President's representative requested that the Court issue a stay of execution. Grave harm to international relations may follow if this death sentence is carried out despite the US failure to heed the ICJ's ruling. Rapid consideration of legislation by Congress is promised. This Court usually gives great deference to the President in foreign relations. A short delay in Leal's 16 year old death sentence will do little harm compared to a violation of US international obligations.

Fleeing the police is reasonable grounds for a search.

Respondent Wardlow fled upon seeing police vehicles converge on an area of Chicago known for heavy narcotics trafficking. When Officers caught up with him on the street, they conducted a protective pat-down search for weapons because in their experience there were usually weapons in the vicinity of narcotics transactions. Discovering a handgun, the officers arrested Wardlow. The State Supreme Court overturned Wardlow’s conviction, determining that sudden flight in a high crime area does not create a reasonable suspicion justifying a stop because flight may simply be an exercise of the right to “go on one’s way.”

Held:

(Rehnquist, joined by O’Connor, Scalia, Kennedy, and Thomas)The officers’ actions did not violate the Fourth Amendment. An officer who has a reasonable, articulable suspicion that criminal activity is afoot may conduct a brief, investigatory stop. While “reasonable suspicion” is a less demanding standard than probable cause, there must be at least
a minimal level of objective justification for the stop. An individual’s presence in a “high crime area” is not enough, but in this case, it was also Wardlow’s unprovoked flight that aroused the officers’ suspicion. Nervous, evasive behavior is another pertinent factor in determining reasonable suspicion.

Dissent:

(Stevens, joined by Souter, Ginsburg, and Breyer)Illinois asks for authorizing the temporary detention of anyone who flees at the mere sight of a police officer. Respondent Wardlow counters by asking us to adopt the opposite rule--that the fact that a person flees upon seeing the police can never, by itself, be sufficient to justify a temporary investigative stop.

Although I agree with the Court’s rejection of both rules proffered by the parties, unlike the Court, I am persuaded that in this case the brief testimony of the officer who seized respondent does not justify the conclusion that he had reasonable suspicion to make the stop.

Death penalty OK if no mitigating evidence.

A Virginia jury convicted petitioner Williams of robbery and capital murder, and, after a sentencing hearing, found a probability of future dangerousness and unanimously fixed his punishment at death, applying the Antiterrorism and Effective Death Penalty Act of 1996.

In habeas corpus proceedings, a federal trial judge [overruled] the death sentence [because it] was constitutionally infirm on ineffective-assistance grounds, identifying five categories of mitigating evidence that counsel had failed to introduce. The Virginia Supreme Court then re-imposed the death penalty.

Held:

(Stevens, joined by O’Connor, Kennedy, Souter, Ginsburg, and Breyer)The death penalty conviction is overturned on ineffective-assistance grounds.

Held:

(O’Connor, joined by Rehnquist, Kennedy, Thomas, and in part by Scalia)The section of the Anti-Terrorism and Effective Death Penalty Act intended to shorten the time between sentencing and executions in capital punishment cases is upheld.

Dissent:

(Rehnquist, joined by Thomas and Scalia)I agree with the Court’s interpretation upholding the Anti-Terrorism and Effective Death Penalty Act but disagree with its decision to grant habeas relief in this case. The murder was just one act in a crime spree that lasted most of Williams’s life. There was strong evidence that petitioner would continue to be a danger to society, both in and out of prison. A jury would not have been swayed by potential mitigating evidence demonstrating that petitioner had a terrible childhood and a low IQ.

OK to lengthen prison sentences retroactively.

Respondent Jones escaped while serving a life sentence for murder, committed another murder, and was sentenced to a second life term. Georgia law at that time required considering inmates serving life sentences for parole after three years, but the law was later amended to eight years. The Georgia Parole Board has the discretion to shorten that interval, but declined to do so in Jones’ case, citing his multiple offenses. Jones sued, claiming that retroactive application violated the Ex Post Facto Clause [which disallows laws that are implemented retroactively].

Held:

(Kennedy, joined by Rehnquist, O’Connor, Thomas, Breyer, and in part by Scalia) Georgia parole officials had the right to extend the time a state prison inmate must wait before he or she can be considered for parole. Georgia law gives the Parole Board broad discretion in determining whether an inmate should receive early release. Such discretion does not displace the Ex Post Facto
Clause’s protections, but the idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience.

Dissent:

(Souter, joined by Stevens and Ginsburg)A change in parole policy violates the Ex Post Facto Clause if it creates a “sufficient” or substantial risk that the class affected by the change will serve longer sentences as a result. The changed rule threatens to increase punishment for all life-sentenced prisoners, not just those who would have been paroled at or before the average time. Georgia has given us nothing to suggest the contrary. And statements by the Parole Board indicate that its policies were intended to increase time served in prison. There is no indication that the board adopted the new policy merely to obviate useless hearings or save administrative resources, the justification the Court accepted in the Morales case. Thus, I dissent.

Life-sentence alternative doesn't affect death sentence.

Petitioner Ramdass was sentenced to death in Virginia for murder. In two other cases, Ramdass had been found guilty of two armed robberies. Arguing for a life sentence in the murder trial, Ramdass claimed that his prior convictions made him ineligible for parole under Virginia’s three-strikes law. The prosecutor argued for a death sentence because of future dangerousness. The court sentenced Ramdass to death, without the jury being told that the defendant is parole-ineligible.

Held:

(Rehnquist, joined by O’Connor, Scalia, Kennedy, and Thomas)The death sentence is valid, even though Ramdass was not allowed to tell jurors that he would not be eligible for parole if sentenced to life in prison.

Concurrence:

(O’Connor)In Simmons v. South Carolina (1994), a majority of the Court held that “where the defendant’s future dangerousness is in issue… due process entitles the defendant to inform the capital sentencing jury that he is
parole-ineligible.” [This precedent does not apply here because], although Ramdass had been found guilty of the armed robbery, that verdict did not count as a prior conviction because final judgment had not yet been entered on that verdict at the time of Ramdass’ capital sentencing proceeding.

Dissent:

(Stevens, joined by Souter, Ginsburg, and Breyer)There is an acute unfairness in permitting a State to rely on a recent conviction to establish a defendant’s future dangerousness while simultaneously permitting the State to deny that there was such a conviction when the defendant attempts to argue that he is parole-ineligible and therefore not a future danger. Even the most miserly reading of Simmons supports the conclusion that Ramdass was denied the right to meet the State’s case against him. The plurality’s criticism [is] formalistic; there are times when judgment is far more important than technical symmetry. I respectfully dissent.